Dismissing Employees Who Develop AIDS

A lawsuit over the matter was dismissed for technical reasons.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Employment Practices

Church Law and Tax 1992-05-01 Recent Developments

Employee Relations

Richard R. Hammar, J.D., LL.M., CPA

• Can a church be sued for dismissing an employee who develops AIDS? That was the issue before a Louisiana state appeals court. An AIDS victim worked for a church. A lawsuit brought against the church following his death claimed that the church had wrongfully terminated the employee on account of AIDS in violation of a state civil rights law. A trial court dismissed the case, and the estate appealed. A state appeals court upheld the dismissal of the case. It relied on a state law that permits certain classes of relatives to bring a lawsuit on behalf of a deceased person within one year of the person’s death. In this case, the lawsuit was brought by the decedent’s estate, and not his surviving relatives (a father and several siblings). By the time this procedural error was detected, the one-year time period for filing a lawsuit had expired. Accordingly, the case was dismissed for technical reasons. Overpeck v. Christ Episcopal Church, 577 So.2d 364 (La. App. 1991).

Defamation and Church Newsletters

Can a church be sued for publishing derogatory statements in its newsletter?

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Defamation

Church Law and Tax 1992-05-01 Recent Developments

Libel and Slander – Defamation

Richard R. Hammar, J.D., LL.M., CPA

• Can a church be guilty of defamation if it publishes derogatory statements in a church newsletter? No, concluded a Louisiana appeals court. A Catholic priest became upset when he suspected that a monument company that did work at a church cemetery was guilty of using church utilities without paying for them. He wrote a letter to the owner of the monument company which stated, in part: “Stated simply, your workers entered our property, and used [church] utilities without permission, and that is theft. I could have them arrested for and charged, for your information.” A copy of the letter was sent to the diocese. A week later, the priest published the following statement in a church newsletter (that was mailed to 362 families): “For your information, I have been obliged [to inform the monument company] that it is forbidden … to perform work of any kind in [the cemetery]. The company has persisted in ignoring my cemetery policies, and has a ‘come as you please, go as you please’ attitude and uses our electrical utilities without permission. The utilities come out of cemetery funds (e.g., your pocket).” The monument company sued the priest, the local church, and the diocese, when it learned of the statement in the newsletter. A trial court ruled in favor of the defendants, and the company appealed. A state appeals court also rejected the claim of defamation. The court observed: “The elements of a defamation action are: (1) a defamatory statement, (2) publication, (3) falsity, (4) actual or implied malice, and (5) resulting injury. A statement which imputes the commission of a crime to another is defamatory per se and as a result, falsity and malice are presumed, but not eliminated as requirements.” The court concluded that the statements by the priest in the letter and church newsletter were false, but that they were not defamatory since the priest made them with a reasonable belief that they were true and accordingly they were not made with “malice.” Redmond v. McCool, 582 So.2d 262 (La. App. 1991).

Minister’s Liability for Youth Director’s Sexual Misconduct

Who is liable for a church worker’s misconduct?

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Counseling, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1992-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana state appeals court ruled that a minister was not legally responsible for the sexual molestation of 4 children by a church youth director. The parents of the 4 children alleged that the pastor had counseled privately with the youth director, and had learned of previous incidents of child molestation. The parents asserted that the pastor had breached his “counselor’s duty” to warn them of “potential future criminal activity” by his counselee. They also asserted that the pastor had been aware of the youth director’s molestation of their children for more than a year without disclosing the fact to anyone. A trial court dismissed the lawsuit, and the parents appealed. A state appeals court upheld the trial court’s dismissal of the lawsuit. The court began its opinion by observing: “We further recognize the legal principle that [a person] has no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists between the [person] and the other so as to afford the other a right to protection …. Where such relationship exists, the law currently characterizes the duty as one to warn of risks of which the actor knew or should have known.” The court concluded that the pastor had no duty to warn the parents of the youth director’s dangerous propensities, since no “special relationship” existed between them which would “afford them a right of protection from [the youth director’s] criminal conduct.” The court continued: “There are no allegations that the alleged molestations occurred in connection with [the youth director’s] functions as youth director or that the parents and children are members of the [church]. The allegations … do not show that [the youth director] acted under the auspices of [the pastor]. Simply stated, the allegations do not state that a special relationship existed between [the pastor and the parents], therefore, [the parents] were owed no duty by [the pastor].” This case is important, for it is one of the few decisions to address the issue of a minister’s duty to warn potential victims of a counselee’s misconduct. According to this decision, such a duty does not exist unless a “special relationship” exists between the pastor and the potential victims. The court did not define a “special relationship” in the context of pastoral counseling, other than to say that such a relationship does not exist (in cases of child molestation) if the following elements are present: (1) the acts of molestation do not occur in the course of a church activity, (2) the victim (and the victim’s family) are not members of the church, and (3) the molester did not act under the authority of the pastor. Miller v. Everett, 576 So.2d 1162 (La. App. 1991).

Legal Developments

Criminal Sentences for Child Molesters

Sentencing varies by state.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Child Abuse

Church Law and Tax 1992-05-01 Recent Developments

Child Abuse and Molestation

Richard R. Hammar, J.D., LL.M., CPA

• What kinds of criminal sentences do child molesters face? This depends on the criminal laws of each state. However, it occasionally is instructive to mention a particular case to demonstrate the seriousness of such an offense. This is especially true in view of the common perception that child molestation involving only physical touching or fondling (and not sexual intercourse) is an insignificant offense. Nothing could be further from the truth. Consider a recent case in Louisiana. A 56-year-old grandfather was convicted of fondling his 4-year-old granddaughter on several occasions. No intercourse was involved. The grandfather pleaded guilty, and expressed remorse for his conduct. Nevertheless, a trial court sentenced him to 14 years of hard labor, despite the fact that it was the grandfather’s first criminal offense and he had enjoyed a good reputation in his community and church. A state appeals court affirmed the sentence. Clearly, it is dangerous to assume that seemingly minor incidents of child molestation are treated leniently by the courts. State v. Driggers, 582 So.2d 369 (La. App. 369).

See the feature article in this issue entitled Sexual Abuse in the Church Nursery; Personal injuries—on church property and during church activities, Miller v. Everett, 576 So.2d 1162 (La. App. 1991); Karen S. v. Streitferdt, 568 N.Y.S.2d 946 (A.D. 1 Dept. 1991).

Religious Conversion of Child Abusers

A court refused to suspend a man’s sentence on the basis of his religious conversion.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Child Abuse

Church Law and Tax 1991-11-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana appeals court refused to suspend a child abuser’s 12-year prison sentence on the basis of his religious conversion. A 38-year-old male (who was married and the father of 5 children) was convicted of sexually abusing one of his minor daughters. He was sentenced to serve 12 years at hard labor. The jury based this sentence on the serious nature of the offense, and the likelihood that the father would commit a similar crime if placed on probation. The father appealed his sentence, arguing that the court failed to adequately consider his religious conversion. Specifically, he maintained that he had “completely rehabilitated” himself as a result of his religious conversion, and that no further rehabilitation was necessary. He asked the appeals court to throw out his prison sentence, and place him on probation. The appeals court rejected this request. It observed: “The defendant repeatedly engaged in extremely serious criminal conduct over a period of about 9 years. His victim was his own biological child …. The blameless victim endured this abuse from the age of 2 to 11 years. She was not able to unburden herself and confide in her mother until she was 14 years old …. [S]he has been greatly traumatized by the defendant’s conduct …. Although the defendant may have made strides in rehabilitating himself, his serious conduct demands punishment.” This case illustrates an important point. The civil courts give little if any weight to religious conversions in evaluating the risk posed by convicted child molesters. On the other hand, churches have been far more willing to trust child molesters who profess to having experienced a life-changing religious conversion. Churches that use such persons in any capacity involving contact or association with minors must understand that they are incurring an enormous legal risk. If such a person molests another child during a church activity, the church almost certainly will be viewed as having acted negligently and recklessly in giving the person “another chance.” Evidence of the person’s professed religious conversion would be of little help in refuting the church’s legal liability. Churches should not hire or use known child molesters in any capacity (paid or volunteer) involving contact with minors. Those that choose to do so must understand that they are assuming the role of guarantor of the safety of children exposed to the molester. This is a duty that few if any churches can meet. State v. Crabtree, 569 So.2d 646 (La. App. 1990).

Negligent Selection

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 c0691

Legal Developments

Family Challenges Woman’s Last Will and Testament

The court upheld her gift to her minister.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Wills, Trusts, and Estates

Church Law and Tax 1991-03-01 Recent Developments

Wills, Trusts, and Estates

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana appeals court ruled that a last will and testament that left the bulk of an elderly woman’s estate to her minister was valid. Relatives challenged the gift to the minister on the basis of two considerations. First, they claimed that the woman (who was 89 at the time of her death, and 84 when she executed the will) was not of sound mind. Second, they relied on a state law prohibiting clergy who “attend a person during the sickness of which he dies” from receiving any portion of that person’s estate. The relatives argued that the woman had died of arteriosclerosis, which had been diagnosed ten years prior to her death, and that the minister who received her estate was her attending minister at the time her arteriosclerosis was first diagnosed. A trial court rejected both contentions, and the relatives appealed. A state appeals court also ruled in favor of the minister. With regard to the woman’s mental capacity, the court observed that persons are presumed to have mental capacity unless the contrary can be demonstrated by “clear and convincing evidence.” Such evidence was not present in this case. The court acknowledged that there was evidence of “some confusion and combativeness on the part of the [woman] but did not indicate that she totally lacked the capacity to execute a will ….” With regard to the state law prohibiting clergy from receiving deathbed gifts from persons that they “professionally attend,” the court observed that the minister who received the estate was never the woman’s minister, but rather was a family friend. Further, the court noted that the relatives’ interpretation of the state law was unreasonable, for it “would have the practical effect of precluding a minister from receiving a legacy once a long-time illness is diagnosed. It would not be reasonable to hold that [the woman] could not give a legacy to her friend … because she was diagnosed as having arteriosclerosis [10 years earlier] and he was her minister at that time.” Succession of Easterly, 563 So.2d 1006 (La. App. 1990).

Legal Developments

Child Abuse – Part 1

Church Law and Tax 1990-03-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Child Abuse

Church Law and Tax 1990-03-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• In a decision that will be of relevance to churches and religious denominations conducting scouting programs, a Louisiana state appeals court addressed the liability of the Boy Scouts of America (and a regional affiliate and local sponsor) for injuries sustained by a boy who was sexually molested by a scoutmaster. The case is especially relevant to local churches since the local sponsor of the scout troop was also sued (many churches that do not have scouting programs of their own sponsor Boy Scouts or other scouting programs by allowing them to meet on their premises). Here are the relevant facts in this significant case. A couple filed a lawsuit alleging that a particular scoutmaster repeatedly molested troop members from 1983 through 1986, including the couple’s two sons. The couple sued the scoutmaster, the national and regional scouting organizations, and the local sponsor of the scout troop. The lawsuit alleged that the national and regional organizations and local sponsor were negligent in (1) “failing to take prudent and reasonable precautions to assure that the [scoutmaster] did not have a history of, or characteristics that would suggest a propensity toward child sexual molestation”; (2) appointing the molester as a scoutmaster “when they knew or should have known of his propensity for committing the sexual acts complained of”; (3) carelessly and negligently selecting scoutmasters; (4) failing to warn parents of the known sexual propensities of the scoutmaster who molested their children; (5) failing to have the molester undergo psychological counseling and testing when they knew or should have known of his propensity to commit acts of sexual molestation; (6) allowing the scoutmaster to continue with his duties when they knew or should have known of his propensity to commit act of sexual molestation; (7) failing to properly supervise the scoutmaster; and (8) failing to properly supervise minor children. A trial court dismissed most of the charges against the national and regional scouting organizations and the local sponsor, and the parents appealed. The state appeals court ruled that the parents had stated a valid claim against the defendants and ordered the case to proceed to trial. The court concluded that “one who undertakes the control or supervision of a child owes a duty to exercise reasonable care to protect the child from injury”; that the parents had stated enough allegations to support liability on the part of the defendants (if proven); and, that the parents should be allowed the opportunity to prove their allegations before a jury. This is the latest of several cases addressing the issue of sexual molestation of minors during church-related activities that have been summarized over the last few years in Church Law & Tax Report. It is an issue that needs to be addressed by local churches and regional and national denominational offices. Suggestions were reported in feature articles in previous issues of this newsletter. This case is of special interest because it is the first to assert liability against the sponsor of a scout troop. As mentioned above, this suggests that churches that simply allow scouting organizations to utilize their facilities may be at risk as well as those churches and denominations that have established and promote their own scouting programs. Future developments in this case, and any related cases, will be covered in future issues of this newsletter. L. P. v. Oubre, 547 So.2d 1320 (La. App. 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 m40 m67 c0290

Legal Developments

Personal Injuries – Part 2

On Church Premises or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana

Church Law and Tax 1989-09-01 Recent Developments

Personal Injuries – On Church Premises or During Church Activities

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana state appeals court upheld a trial court’s dismissal of a lawsuit filed against a church by a member who was injured when she fell on a church stairway. On the day of the accident, the member and a friend were preparing breakfast in the church kitchen for a youth recreational event. In the kitchen was a doorway leading to an outside staircase consisting of three steps to the ground. The member picked up an ice chest with the intention of standing in the doorway and emptying the contents to the side of the staircase. When the member stepped through the doorway she fell forward down the staircase and landed on the ground. She sued the church, arguing that the staircase violated city code since the top step was allegedly more narrow than the bottom two steps and the staircase did not have a handrail. The court concluded that even if the church had violated the city code, the member “loses because she was contributorily negligent. [T]he fact is she stepped through a doorway, with her vision at least partially obscured by the ice chest she carried, missed her step, and fell. Reasonable prudence required her to be more careful …. She had no right to assume that there was a place to land her foot because she could not see where she was going.” The absence of a handrail, and the width of the top step, in no way contributed to the member’s injuries, the court concluded. Richard v. Church Insurance Company, 538 So.2d 658 (La. App. 1989).

See also Child abuse, Dunn v. Gracia, 768 P.2d 419 (Ore. App. 1989).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m86 c0589

Legal Developments

Wills, Trusts and Estates – Part 1

Church Law and Tax 1989-07-01 Recent Developments Wills, Trusts, and Estates Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Wills, Trusts, and Estates

Church Law and Tax 1989-07-01 Recent Developments

Wills, Trusts, and Estates

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana appeals court upheld the validity of a will that left a decedent’s estate to her minister. Here are the facts. The decedent died in 1986 at the age of 86. As early as 1979, she began exhibiting behavior which led her doctor to conclude that she was suffering from Alzheimer’s disease. By 1981, she had trouble recognizing close friends and relatives, her conversations became repetitive, and she became prone to emotional outbursts and temper tantrums. In 1979, a minister began transporting the decedent to and from church. By 1982, she offered to give her property to him (she made similar offers to others who did favors for her). In 1983, the minister took the decedent to an attorney’s office in order to have a will drafted leaving him her estate. The attorney had known the decedent for many years, and had drafted a previous will for her in 1975. He questioned her as to whether she understood that she was revoking her previous will and was leaving her entire estate to the minister. At one point he stated, “this [minister] is not a member of your family, do you understand that you have a right to give your possessions to whomever you wish, but you’re under no threat or anything?” The decedent became upset with the attorney’s questions, and the will was prepared and signed. Following the decedent’s death in 1986, the minister introduced the will to probate. A relative of the decedent challenged the will on the following grounds: (1) the decedent lacked the capacity to make a will (in 1983) because of mental incompetence; and (2) a state law invalidated will provisions leaving a gift to a minister if the will was drafted during the decedent’s “last illness” and the minister “attended” the decedent during that illness. The state appeals court ruled in favor of the minister. It observed that a will may successfully be challenged on the basis of mental incompetence only if “clear and convincing evidence” of incompetency exists. While acknowledging that some evidence of incompetency existed in this case, it failed to amount to “clear and convincing evidence.” The court was especially impressed with the fact that the decedent’s attorney had testified that he felt that she was competent at the time she executed her will in 1983. The decedent certainly was becoming more forgetful by 1983, the court acknowledged, but this fact alone did not constitute clear and convincing evidence of incompetency. Similarly, the court rejected the claim that state law prohibited the gift to the minister, since the will had not been executed during the decedent’s “last illness.” Between 1983 and shortly before her death in 1986, the decedent was not chronically ill. However, had the decedent “made the will during her final hospitalization a different result might obtain.” This case reveals the difficulty that is typically encountered in attempting to invalidate a will on the basis of mental incompetency or “undue influence.” The “clear and convincing evidence” standard is recognized by many states, and often bars relatives from successfully challenging a will leaving all or part of an estate to a minister (or more commonly to a church or other charity). Succession of Mack, 535 So.2d 461 (La. App. 1988).

Legal Developments

Child Abuse – Part 2

Church Law and Tax 1989-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Counseling

Church Law and Tax 1989-05-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Can a diocese and bishop be sued for damages resulting from the alleged sexual molestation of minors by a Catholic priest? That was the issue before a Washington state appeals court in a recent case. In 1984, a Catholic diocese in Louisiana suspended a priest from performing his “priestly duties” after he admitted to sexual misconduct with minors. The priest was asked to leave the diocese and he eventually was admitted (with the approval of the diocese) to the Jesuit House in Spokane, Washington. A representative of the Louisiana diocese noted that “because of the nature of the complaints, we did not want to take any chances of him just running free. We had no police control over him. We could not lock him up or anything like that. So, we had to leave him in a place where he could have some supervision and a place to stay.” Just prior to the priest’s discharge from the Jesuit House, the diocese informed him that his “options in the ministry were severely limited if not nil,” and that “because of the possibility of legal action and the responsibility on the part of any institution that might hire you, I think realistically that for Church employment you are a very poor risk.” The diocese further advised the priest that he would not be permitted to perform priestly duties upon his release, and that he was not to return to the diocese. Following his release from the Jesuit House, the priest accepted a job as a counselor of adolescents in an alcohol/drug rehabilitation center in a private hospital. He was terminated from this job because of complaints of sexual abuse by former patients. Eight adolescents and one adult sued the hospital, the priest, as well as his diocese and bishop. The plaintiffs alleged that the diocese had negligently supervised the priest, and that it should have warned the private hospital of his pedophilia. The appeals court agreed that “an employer may be held liable for acts beyond the scope of employment because of its prior knowledge of the dangerous tendencies of its employee.” The diocese argued that it could not be liable for the misconduct of the priest, since his actions did not arise out of his priestly duties and accordingly were not within the scope of his employment relationship with the diocese. In rejecting this claim, the court observed that “the duty of obedience which [the priest] owed the diocese encompassed all phases of his life and correspondingly the diocese’s authority over its cleric went beyond the customary employer/employee relationship …. Despite his employment with [the hospital], the employment relationship between [the priest] and the diocese continued.” The court sent the case back to the trial court to determine whether the diocese had been negligent in supervising the priest, and whether it should have warned the hospital of his pedophilia. If the courts of Washington ultimately determine that the diocese was negligent for not having warned the hospital of the priest’s pedophilia, then this would suggest that church denominations (and even local churches) may be at risk if they are aware that a minister is a pedophile but do nothing to warn a prospective employer (religious or otherwise) of the individual’s pedophilia. Further developments in this case will be reported in future issues of Church Law & Tax Report. Does 1-9 v. Compcare, Inc., 763 P.2d 1237 (Wash. App. 1988).

Legal Developments

Clergy – Part 2

Removal

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana

Church Law and Tax 1989-05-01 Recent Developments

Clergy – Removal

Richard R. Hammar, J.D., LL.M., CPA

• Ambiguous or incomplete church bylaws often spawn legal disputes. Such was the case in a recent Louisiana decision. In 1987, the trustees of a Baptist church removed their pastor from office, and then obtained a court order prohibiting him from continuing as pastor of the church and from entering upon church property. Within days, a group calling itself the “board of directors and general membership” of the church asked the court to reverse its previous order on the ground that the “trustees” who obtained the order had been removed from office by the church membership, and that the pastor had been reinstated. The “new” trustees also sought $400,000 in damages against the previous trustees because of their “acts of bad faith in attempting to use power not given to them by the bylaws or general membership.” The trial judge observed that “the articles of incorporation and the bylaws are seriously deficient in not only meeting the requirements of law but also deficient in providing and directing the directors, or the governing body, of the church as to how they should internally handle the affairs of the church.” The trial court issued an order declaring that all prior meetings of the trustees and general membership of the church were null and void and of no legal effect. In addition, it ordered a general membership meeting to be conducted on a specified date (following written notice to all members), at which time a board of directors of nine members would be elected from the membership of the church. The court further decreed that the meeting would be presided over by a panel of three persons, one of whom would be designated by the court, and that only those persons who were at least 18 years of age, and who had been members of the church for the preceding six months, were eligible to vote. The court disallowed “proxy” voting, and empowered the newly elected board of directors to adopt a set of bylaws to “govern the internal affairs of the church,” including the calling or dismissing of a pastor. Finally, the trial judge ruled that the previous board’s efforts to remove the pastor were invalid since the church bylaws did not confer such authority upon the board. The previous trustees appealed the trial judge’s order to a state appeals court on the ground that the judge had exceeded his authority, and that they had not been lawfully removed from office. The state appeals court ruled that the members of a nonprofit corporation may remove directors from office at a meeting called for this purpose, at any time. However, since the church had not fulfilled the legal notice requirements imposed by state law for calling a special business meeting, the church’s attempted removal of the previous trustees was “null and void.” The court further concluded that the previous trustees lacked the authority to remove the pastor from office, since the church bylaws did not specifically confer this authority upon them. The court upheld the trial judge’s order calling for a supervised church meeting at which a new board would be elected. It rejected the previous trustees’ contention that there was no legal precedent for a civil court ordering a church meeting and election. However, it did reverse the trial judge’s order prohibiting proxy voting, since such a ruling was contrary to state nonprofit corporation law. This case illustrates the following important principles: (1) internal church problems often are caused by inadequate or incomplete church bylaws; (2) complying with notice requirements in calling a church business meeting is essential; (3) a civil court may intervene in a church’s internal affairs in order to resolve conflicts prompted by inadequate bylaws; and (4) a church board may not remove a pastor unless such authority is specifically vested in them by either the church charter or bylaws. First Union Baptist Church v. Banks, 533 So.2d 1305 (La. App. 1988).

Legal Developments

Wills, Trusts and Estates – Part 2

Church Law and Tax 1989-05-01 Recent Developments Wills, Trusts, and Estates Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Wills, Trusts, and Estates

Church Law and Tax 1989-05-01 Recent Developments

Wills, Trusts, and Estates

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana state appeals court refused to recognize a provision in a last will and testament that attempted to bequeath the decedent’s home to a church. The will left the decedent’s home to a sister, and then provided that “in the event of my sister’s death after mine … I do hereby bequeath said residence to the First Presbyterian Church” (of which the decedent had been a member). The court observed that “it is apparent that although the decedent intended to donate property to the church, she clearly attempted to do so in a prohibited fashion.” The court quoted Article 1520 of the Louisiana Code in support of its ruling: “Substitutions are and remain prohibited …. Every disposition not in trust by which the donee, the heir, or the legatee is charged to preserve for and to return a thing to a third person is null, even with regard to the donee, the instituted heir, or the legatee.” The contested will provision, concluded the court, was “an attempt by the decedent to give ownership to one, to have and to hold for a lifetime, and then to will it to yet another. This clearly fits the section 1520 definition of a prohibited transfer.” Succession of Flowers, 532 So.2d 470 (La. App. 1988).

Legal Developments

Civil Court Could Resolve a Lawsuit Brought by One Minister Against Another Minister Alleging Defamation

Can the civil courts resolve a lawsuit brought by one minister against another minister alleging

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Defamation, Invasion of Privacy

Can the civil courts resolve a lawsuit brought by one minister against another minister alleging defamation, invasion of privacy, and intentional infliction of emotional distress? That was the difficult question before a Louisiana state appeals court.

In July of 1986, televangelist Jimmy Swaggart allegedly accused another minister, Marvin Gorman, of committing immoral acts with several women over a period of years. On July, 16, 1986, Gorman resigned his church, and in August he was formally dismissed as minister by his denomination. Despite the dismissal of Gorman as a minister by both his local church and denomination, Swaggart and other defendants allegedly continued to make statements casting doubt on the moral character of Gorman, and these statements were circulated to pastors and churches of other denominations as well as to the public at large.

Gorman sued Swaggart and a number of other defendants, charging them with defamation, invasion of privacy, and intentional infliction of emotional distress. Swaggart responded by arguing that the civil courts had no power to resolve internal church disputes. A trial court agreed with Swaggart, and then Gorman appealed the case to a state appeals court.

The appeals court ruled that the trial court had erred in dismissing the lawsuit. It acknowledged that the constitutional guaranty of religious freedom forbids the civil courts from interfering "in matters of religious discipline, faith, or custom, as well as to the appointment and removal of ministers." However, it noted that "there are limits to this prohibition, and in those cases where religious doctrine is not involved … civil courts retain the power to resolve disputes."

This was just such a case, the court concluded, since "Gorman clearly is not disputing his dismissal as a minister. How could he, when his voluntary resignation predated his formal dismissal?" But eve more important, observed the court, was the fact that "Gorman's suit alleged defamatory acts which occurred outside" his church and denomination after he had been formally dismissed as a minister. "Even were we to find that the defendants' post-dismissal statements were legitimately part of the internal church discipline, there is a serious question as to whether the first amendment's protection would extend to those statements allegedly made to the press, the general public, and pastors of other denominations."

The court concluded that the statements made to persons outside of Gorman's church and denomination took the case beyond the scope of an internal religious matter: "This court may be powerless to interpret the religious doctrine which defendants claim compelled them to publicize their accusations to other members of their church, however, this does not mean they can make those accusations outside their church and not face the legal consequences." The court rejected the claim that Swaggart and the other defendants were entitled to publicize statements regarding Gorman to the "church at large" (referring to all Christians of whatever persuasion).

This case demonstrates the caution that should be employed when disseminating the causes of disciplinary action. If disciplinary action is taken against a minister or church member, extreme care must be taken not only in the content of any explanatory statements, but also in the audience to whom such statements are made. Clearly, statements to persons outside the church or denomination involved must be avoided, and protections should be used even in disseminating information to these restricted audiences to insure that the information is not circulated beyond those with a legitimate right to know.

Gorman v. Swaggart, 524 So.2d 915 (La. App. 4th Cir. 1988)

Legal Developments

Court Concluded That a Motion to Fire a Minister Was Invalid Because of Improper Notification

Can a minister be voted out of office at a congregational meeting if the notice

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Charters, Constitutions, and Bylaws, Clergy - Removal

Can a minister be voted out of office at a congregational meeting if the notice of the meeting did not indicate that there would be a vote on the minister's continued employment? That was the difficult question before a Louisiana state appeals court in a recent decision.

A Baptist church convened a special meeting of the congregation. Notice of the meeting consisted of announcements from the pulpit on the three consecutive Sundays prior to the meeting. These announcements did not indicate that a vote would be taken on the minister's continued employment. At the meeting, a motion was made from the floor to terminate the minister's services. The minister, acting as chairman of the meeting, ruled the motion out of order since there had been no prior notice that such a vote would be taken. A deacon then proceeded to conduct a vote over the minister's objection, and the members present voted to terminate the minister's services.

The ousted minister attempted to return to the pulpit on the following Sunday, but was prevented from doing so. The church later obtained a court order prohibiting the minister from attempting to occupy his former position.

The minister appealed this decision to a state appeals court, arguing that the church had improperly fired him since it had not given proper notice of the business to be transacted at the congregational meeting. The appeals court agreed. It began its opinion by observing that neither the church's charter nor bylaws specified the type of notice needed for special meetings.

Since the charter and bylaws were silent concerning the proper form and manner of notice, the state nonprofit corporation law under which the church was incorporated had to be consulted. A provision in the nonprofit corporation law specified that "unless otherwise provided in the [charter] or bylaws … the authorized person calling a members' meeting shall cause written notice of the time, place and purpose of the meeting to be given to all members entitled to vote at such meeting, at least ten days and not more than sixty days prior to the day fixed for the meeting."

Notice of the church's special congregational meeting was defective since it was not in writing (it had been announced from the pulpit), and it failed to specify the purposes of the meeting. "The notice of the meeting was clearly deficient," concluded the court, "and the meeting was therefore invalid."

This case is significant for two reasons:

First, it emphasizes the significance of giving proper notice of church business meetings. Procedural defects, such as defective notice, can render a meeting invalid. It is essential that clergy and church boards be familiar with the wording of their own church charters and bylaws regarding the matter of notice.

Second, the case illustrates the principle (which is followed in many states) that an incorporated church may be governed by state nonprofit corporation law in the event that it fails to address certain matters of administration and operation in its charter or bylaws. Of course, churches in such states are free to adopt provisions contrary to the nonprofit corporation law in their own charter or bylaws, and such provisions will be controlling. But in the event that they fail (for whatever reason) to address certain issues of church administration in their organizational documents, state law may step in to "fill the void." Bethlehem Missionary Baptist Church v. Henderson, 522 So.2d 1339 (La. App. 1988).

Legal Developments

Civil Court Did Not Have the Authority to Resolve a Lawsuit Brought by a Former Minister Against Denominational Officials

Rev. McManus had served as an ordained minister in the Church of God (Cleveland, Tennessee)

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Church Membership - Discipline and Removal, Clergy - Discipline and Removal

Rev. McManus had served as an ordained minister in the Church of God (Cleveland, Tennessee) for more than 30 years. In 1977, he disciplined certain members of his congregation, who thereafter were accepted as members in a neighboring Church of God congregation. Rev. McManus protested the action of the neighboring church to the "state overseer" of the denomination, on the ground that denominational rules had been violated. Both the state overseer and the national denomination refused to support Rev. McManus.

Rev. McManus and his congregation "protested" these actions by withholding "tithes" to the national organization. As a result, Rev. McManus was removed from his position as "district overseer" and from a place on the editorial and publishing board of the Church of God denomination. He later ceased to be a minister with the Church of God, and sued denominational officials as well as the state and national offices of the Church of God, for defamation.

The Louisiana appeals court, in concluding that it lacked jurisdiction to resolve the dispute, relied upon a 1976 decision of the United States Supreme Court, which held that the United States Constitution "permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them." Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

The Louisiana court concluded that "[i]t would be ludicrous to believe that the constitutional principles upheld by the United States Supreme Court … could be satisfied by allowing this intrusion into the disciplinary proceedings of an ecclesiastical board. To allow defamation suits to be litigated to the fullest extent against members of a religious board who are merely discharging the duty which has been entrusted to them by their church could have a potentially chilling effect on the performance of those duties." McManus v. Taylor, 521 So.2d 449 (La. App. 1988)

Legal Developments

Court Refused to Extend the Clergy-Penitent Privilege to an Unordained, Self-Proclaimed Minister

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Confidential and Privileged Communications, Counseling, Ministerial Exception

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed minister to whom a murder suspect made certain statements.

The minister characterized himself as a "self-ordained minister," which he defined as "a person who takes it upon himself to guide others in religious matters." He had taken a Bible study correspondence course from a college in California, and while in the armed services participated in a Bible study group in his church. Such a background, concluded the court, was not enough to justify application of the clergy-penitent privilege under Louisiana law, which provides that "no clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication."

The court observed that "simply because [the alleged minister] studied the Bible and took it upon himself to give religious guidance to others does not make him a clergyman." Further, the evidence did not demonstrate that he had been "approached for spiritual counseling." As a result, the communications made to the minister by the murder suspect were not privileged, and were properly admissible in court. State v. Hereford, 518 So.2d 515 (La. App. 1987)

Legal Developments

Court Upheld Ban on Hare Krishnas from Soliciting Donations at Traffic Lights

A federal court in Louisiana upheld the constitutionality of a municipal ordinance that barred Hare

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal court in Louisiana upheld the constitutionality of a municipal ordinance that barred Hare Krishna adherents from soliciting donations from occupants of motor vehicles temporarily stopped at traffic lights.

The adherents solicited donations during the Christmas season, while dressed in Santa Claus costumes, from drivers stopped at the busiest intersections in Baton Rouge. Though the solicitation of donations was admittedly a religious practice of the Hare Krishna adherents, it could be limited in the interests of public safety. "Mixing pedestrians and temporarily stopped motor vehicles in the same space at the same time is dangerous …. [Further], the driver who fumbles to unfasten his seat belt so that he can get into his pocket for a handful of coins to pass out the window and who does not move off promptly when the light turns green, holds up those vehicles behind him … invariably causing delays and disruptions to traffic." International Society for Krishna Consciousness v. Baton Rouge, 668 F. Supp. 527 (M.D. La. 1987)

Legal Developments

Religious Order and Archdiocese Not Liable for Injuries Caused by Nun’s Negligence

A young mother was seriously injured when a car she was driving was struck by

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Personal Injuries on Church Property or During Church Activities

A young mother was seriously injured when a car she was driving was struck by a car driven by a member of the Sisters of Mount Carmel (a religious order).

The victim sued the driver, the order, and the Archdiocese of New Orleans, for negligence. A Louisiana appeals court held that the order and the Archdiocese were not liable for the injuries caused by the sister's negligence, since she "was not on an errand for her religious order or the Archdiocese at the time of the accident." Mattingly v. State Department of Health, 509 So.2d 82 (La. App. 1987).